III. DECIDING WHETHER TO ARBITRATE

The first question one should ask in determining whether to arbitrate or try a case should almost always be: “Will my client be better served by trial or by arbitration?” At its core, this question requires a comparison of likely outcomes at trial versus arbitration. However, it should also include considering which forum best meets your client’s non-economic objectives.

A. Is Arbitration a Good Choice for Your Client?

Initially, the inquiry centers on your client (i.e., their personal characteristics, likability, and demeanor) and then broadens to encompass the case and forum as well. For these latter considerations, you will need to consider the nature of the case; the types of damages at issue; the level of certainty each forum provides; and each forum’s cost, time, and logistics. While the value placed on each factor will be case-specific, each factor should be examined whenever arbitration is an option.
1. Matching Clients with the Right Forum
Good clients can make great cases, but trying or arbitrating a case with the wrong client can be a disaster. Many of us have gone to trial or arbitration confident that our client would be well-received, only to be greatly disappointed. If every client were likeable, articulate, educable, pure, and entirely deserving, then whatever means (i.e., litigation, arbitration, mediation, or claims handling process) or ends (i.e., trial verdict, arbitration award, or settlement) were chosen would make little difference; we would find success in every forum. However, when representing clients who lack some of these desirable characteristics, , success or failure often turns on our ability to match our client with the forum that best aligns with their case.

To determine what is the best forum for your client, you must have a clear, objective view of your client and their case, as well as some general knowledge about each forum. While getting an accurate, objective assessment of your client and their goals may seem easy, difficulty arises from the inherit bias many of us develop in favor of our clients or our cases. As lawyers, we give our clients the benefit of the doubt. Further, we have a vested interest in seeing the value in their case. We assume others see it the same way, but often we are wrong.

Getting an Objective View of Your Client

To gain an objective view of your client and her case, you need to take a step back, a step aside, and a step forward. Take a step back by remembering when you first met your client. What were your initial thoughts about your client and her case? At this beginning stage, we are usually more discerning, cynical, and suspicious. Once we decide to take a case, we can easily rationalize away or even ignore certain problems.

Step aside by removing yourself from your client and her case. Informally videotape your client in your office or at her examination under oath (EUO). Most operating systems offer user-friendly video editing programs that allow you to edit video into short segments that can show your client’s demeanor or isolate an important issue in the case.

Step forward by actively seeking opinions about your client. Informally, you can begin by requesting that staff members who have never met your client attend a case meeting with her. You can seek a potential juror’s perspective by showing a spouse, friend, or coworker a few minutes of video – after addressing any confidentiality or ethical issues, of course – and gain some valuable information without imposing greatly on their time. More detailed results can be obtained from focus groups, which can range from a handful of folks compensated by a few bucks and pizza, all the way to focus groups organized and handled by professionals. If you seek an arbitrator’s perspective of your client, show those same clips to lawyers with similar views as those who might be selected as arbitrators.

A few rules of thumb about certain types of clients and cases may provide guidance in determining when arbitration is a good or bad choice. If nothing else, certain clients should prompt more inquiry than others when it comes to arbitration. Some examples include the highly compensated client, the articulate client, the stoic client, the whiner client, and the ne’er-do-well client.

4. Client Objectives Other Than Money

A client’s desire to tell their story; to be proven right; to prove the other side wrong; to gain a sense of validation, inclusion, or control; or to be treated fairly and with respect, are just a few examples of clients’ goals that transcend monetary compensation. While the award or verdict can emphasize or validate some of those objectives, so, too, can the process. However, the process can also undermine those goals. Therefore, it is important to consider your client’s objectives when determining which forum is best.

Arbitration is more civilized and personalized than trial; clients wishing to tell their story and to be treated respectfully will usually find a better environment at arbitration. By contrast, a trial’s formality and the rigors of cross-examination may cause your client to feel insignificant and beaten up. Even if a larger recovery is more likely at trial, your client may be more satisfied with the overall process of arbitration and may be happier with you as a result.

Those clients who just want to “win” and prove they are right, or seek to prove the other side wrong, may need to hear the stark reality of a jury verdict in order to get closure. An arbitration award that reflects a compromise simply will not satisfy these clients. For clients like these, the arbitration process may seem too collegial.